WIPO-WTO Relations and the Future of Global Intellectual Property Norms

Abstract

The intense scholarly debate about the effects of harmonized global intellectual property (IP) rules under the TRIPS Agreement has yet to consider what role an appropriate organizational framework should play in facilitating development of IP norms to address new global challenges. The prevailing assumption has been that the norm-setting role of the World Intellectual Property Organization (WIPO) will remain unchanged despite the primacy of the TRIPS Agreement and the explicit mandate of the WTO for global IP regulation. Indeed, with respect to the supply of public goods, only the WTO - not WIPO - has the formal legal mandate to promote global public welfare. In this Article, I argue that the WTO, in a hierarchical division of labor with WIPO, should be promoted as the primary locus of IP norm-setting with respect to those norms that affect the production and supply of global public goods. I advance three primary arguments to support this claim. First, the WIPO-WTO Agreement can reasonably be interpreted as creating a hierarchical relationship between the two Organizations. Second, emerging global challenges such as climate change and food security require coordinated global action and bargained-for linkages to achieve results acceptable to countries at different levels of development. Third, the WTO's organizational design offers multiple points at which norm-setting processes could be more credibly centered on the development concerns of the global South. IP norm-setting in the WTO is not without risks. Nonetheless, an organizational culture in which IP is only one of many tools to accomplish defined welfare goals, rather than the raison d'etre of an organization's existence, could force open important institutional space in which future IP norms consistent both with the interests of less developed countries and the ideals of established IP systems, can be meaningfully negotiated. At a minimum, a hierarchical relationship may facilitate inter-institutional competition between the WTO and WIPO, generating additional welfare gains for the international community in the form of greater transparency in the processes of IP norm-setting, improvements in the democratic deficit inherent in international organizations generally, as well as systemic gains from enhanced accountability in the global management of IP.